Citation Nr: 1418366
Decision Date: 04/24/14 Archive Date: 05/02/14
DOCKET NO. 04-43 511 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUE
Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Robert V. Chisholm, Attorney-at-law
WITNESSES AT HEARING ON APPEAL
Appellant and a caregiver
ATTORNEY FOR THE BOARD
G. Jivens-McRae, Counsel
INTRODUCTION
The Veteran served on active duty from August 1971 to August 1975.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Muskogee, Oklahoma.
In April 2006, the Veteran and his caregiver testified at a videoconference hearing. A transcript of that hearing is of record and associated with the claims folder.
In January 2007, the Board found that new and material evidence had been received to reopen the claim for service connection for PTSD. Also, in January 2007, and again in January 2010, the Board remanded the issue of entitlement to service connection for PTSD for additional development.
During the pendency of this claim, the Veteran was diagnosed with PTSD and anxiety disorder, not otherwise specified, and depression. Although a claimant may identify a particular mental condition on the claims form accompanying his application for VA benefits, the scope of the claim cannot be limited only to the condition stated, "but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that VA obtains in support of the claim." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Since he has been diagnosed with more than PTSD, the claim has been characterized as an acquired psychiatric disorder to include PTSD.
In September 2011, the Board denied service connection for an acquired psychiatric disorder to include PTSD. The Veteran appealed the Board's September 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated February 28, 2013, the Court vacated and remanded the Board's decision.
In February 2014, the Board notified the Veteran that the VLJ who held his April 2006 videoconference hearing was no longer employed by the Board. The law requires that the VLJ who conducts a hearing on appeal must participate in any decision made on appeal. See 38 U.S.C.A. § 7107 (c); 38 C.F.R. § 20.707 (2013). The Board offered the Veteran the opportunity to testify at another hearing and gave him 30 days to respond. He declined that opportunity to further testify at a hearing on behalf of his claim.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran asserts that he has an acquired psychiatric disorder, to include PTSD, which was incurred in active service.
The Veteran alleged that he had in-service stressful experiences. The Veteran claimed that he was fired upon by shells, small arms, and artillery while performing an intelligence mission within three miles of the Soviet Union while he was serving on the U.S.S. Blueback. Most recently, during an August 2013 private psychiatric examination, he also claimed stressors of seeing American sailors he knew killed in a docking accident in Pearl Harbor, and of being trapped alone in a flooding torpedo room.
The August 2013 private medical examination report reflects a diagnosis of PTSD and numerous other DSM-IV diagnoses. In addition to a diagnosis of PTSD, the psychologist stated that the Veteran manifested a compensable psychosis within 1 year of separation of service (he did not diagnosis any current psychosis, however). He also diagnosed that it was not possible to separate the symptoms and impairments caused by his various diagnoses.
Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f) (2013).
However, on July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows:
(f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon a friendly military aircraft, and where the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.
See 75 Fed. Reg. 39843 (July 13, 2010).
While effective on July 13, 2010, this final rule applies to an application for service connection for PTSD that was appealed to the Board before July 12, 2010, but has not been decided by the Board as of that date. The claimed stressor of being fired upon by shells, small arms, and artillery while performing an intelligence mission within three miles of the Soviet Union while he was serving on the U.S.S. Blueback, has been conceded by the Board as falling within the scope of being in "fear of hostile military or terrorist activity". While the August 2013 private medical examiner did render a diagnosis of PTSD in part based on this stressor, since such a diagnosis in this context must be by a VA psychologist or psychiatrist, the Board finds that the claim must be remanded for an additional examination.
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate with the claims file all VA medical records and any other medical evidence that may have come into existence since the time the claims file was last updated by the RO/AMC.
2. Thereafter, the Veteran should be afforded a VA psychiatric examination to determine the nature and etiology of his claimed PTSD. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the examiner (a VA psychologist or psychiatrist) for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner.
Based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to offer an opinion, with full supporting rationale, as to whether the Veteran has PTSD meeting the criteria of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994), and, if so, whether it is at least as likely as not (50 percent probability or greater) that the Veteran's PTSD is the result of any in-service claimed event.
The VA examiner should also specifically determine whether the Veteran has a claimed stressor that is related to his fear of hostile military or terrorist activity. Thereafter, the VA examiner should confirm whether the claimed stressor is adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor. If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s).
For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a claimant experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the claimant or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the claimant's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.
If an acquired psychiatric disability other than PTSD is diagnosed, e.g., anxiety disorder, depression, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that the psychiatric condition had its onset in service or is otherwise causally related to the Veteran's service.
The examiner should take into consideration the statement submitted by the Veteran that his fear is the result of being fired upon by shells, small arms, and artillery while performing an intelligence mission within three miles of the Soviet Union while he was serving on the U.S.S. Blueback.
As for any stressors that are not a result of fear of hostile military or terrorist activity, those stressors should be appropriately verified.
All findings and conclusions should be set forth in a legible report. A rationale should be given for any opinion rendered. If the examiner is unable to render an opinion without resorting to pure speculation, he/she should so state with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).
3. Following completion of any other development or action deemed necessary, the RO/AMC should readjudicate the claim on appeal. If any claim remains denied, the Veteran and his representative should be provided a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate action, if deemed appropriate.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).